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Private reprimand against O'Connell dismissed

County Attorney Mike O'Connell says the Kentucky Bar Association voted 15-0 today to dismiss a private reprimand against him for sending a letter to district court judges urging them to stop "disingenuous maneuvering" by defense lawyers in drunken driving cases.

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Private reprimand against O'Connell dismissed

Andrew Wolfson, The Courier-Journal;
4:03 a.m. EDT May 17, 2014

Jefferson County Attorney Mike O'Connell talks to the House Committee on Judiciary about SB 157. March 19, 2014(Photo: Aaron Borton/ Special to The Courier-Journal, Aaron Borton/ Special to The Courier-Journal)

The Kentucky Bar Association board of governors voted 15-0 Friday to dismiss an ethics complaint against Jefferson County Attorney Mike O'Connell for sending a letter to district court judges urging them to stop "disingenuous maneuvering" by defense lawyers in drunken driving cases.

KBA President Tom Rouse said the board unanimously rejected a hearing officer's recommendation that O'Connell be privately reprimanded for violating an ethics rule that prohibits a lawyer from contacting a judge "on the merits of a cause" without the other side present.

Contesting the reprimand publicly, O'Connell said last year that he had a First Amendment right to send the letter and that it didn't violate the rule against ex parte communications because he wasn't telling judges how to vote on a particular case.

"I am very happy," O'Connell said after the vote, which he said was taken after a 50-minute hearing Friday.

Karen Faulkner, his opponent in Tuesday's Democratic primary, who has criticized O'Connell for sending the letter, said her position is "unchanged."

Chief Bar Counsel Tommy Glover said either side in disciplinary case can appeal to the Kentucky Supreme Court but declined to comment on whether his office would do so in this case.

Defense lawyers and some judges criticized O'Connell for the December 2012 letter, questioning both its ethics and tone.

Judge Stephanie Burke described it as "threatening" and said she was "astonished that the county attorney would send such a brash letter to judges telling us how to do our job." Burke said in an email Friday that "my opinion remains the same."

Louisville attorney Vince Aprile, who filed the complaint that led to the reprimand, declined to comment.

In his two-page letter, O'Connell asked the judges to do something about a practice in which defense attorneys file motions to suppress evidence after trials begin, when the ban against double-jeopardy — trying a defendant twice for the same crime — comes into play. The tactic keeps the prosecution from appealing adverse rulings.

O'Connell said at the time that he had a duty to speak out in the wake of a Courier-Journal series that told how most DUIs tried before judges result in acquittals. O'Connell said the stories "called the integrity of the District Court into question."

But defense lawyers and some judges noted that the practice is permitted under state Supreme Court rules, which allow motions to suppress to be filed at any time.

A KBA hearing office who affirmed the sanction in March said that even though O'Connell's letter did not address the merits of any particular case, its ultimate purpose was to influence the outcome of pending and future cases.

Kentucky Supreme Court Justice Will T. Scott, the chairman of the court's criminal rules committee, said a proposed change on the timing of suppression motions will be considered at the KBA's convention next month.

Under the proposed rule, he said, defense counsel would be required to such motions before a trial starts, unless evidence emerges during the trial to justify one.